Child Witnesses on the Academic and Judicial Front

Some of the most perplexing issues related to the Confrontation Clause involve statements by children. The Indiana Law Journal has recently published a symposium on the topic, under the sponsorship of Prof. Aviva Orenstein. Her introductory essay, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses, 82 Ind. L.J. 909 (2007), summarizes the other pieces. At a glance, I can see that there is a good deal with which I agree and a good deal with which I disagree.

A recent opinion in the area is State v. Krasky, 2007 WL 2264711 (Minn. Aug. 9, 2007). This is another in a series of cases in which some courts have treated as non-testimonial an accusation of abuse made by a child to a care-giver, such as a nurse or social worker, a considerable time after the alleged incident. A few points about the case warrant mention and raise other issues.

1. The “purpose” evasion

The majority of the Minnesota Supreme Court reached this conclusion notwithstanding the fact that a police report indicated that a police officer and a child protection worker jointly concluded that “the best way to proceed with the investigation was to have [the Child Resource Center where the child made the accusation to a nurse] do an interview with [the child] along with a medical exam.” Picking up on the “primary purpose” language of Davis v. Washington, 126 S.Ct. 2266 (2006), and extending it beyond the emergency situation, the court deemed the primary purpose of the interview to be protecting the health and welfare of the purported victim. In my view, this result highlights one of the serious problems of a test depending on the primary purpose of the questioner. True, some courts have shown deftness in manipulating what I believe is the proper test, depending on the reasonable anticipation of the speaker. But a questioner-purpose test is much more easily manipulable. First, it allows the questioner herself to portray her purpose in a way supporting a conclusion that the accusation is not testimonial. Second, as in this case, such a test allows a routine in which accusations made to agents without law enforcement responsibility to be deemed non-testimonial, no matter how predictable it may be that the agent will relay the accusation to court if the accuser does not appear. Indeed, given the approach in Krasky, I am not sure what would prevent a state from referring all alleged crime victims to a victims’ counselor who would then take the accusation and transmit it to court if the victim does not testify there. So imagine this conversation between a counselor and an adult who has allegedly been the victim of a crime:

Counselor: Officer Tuesday has referred you to me so that I can help you deal with the considerable trauma that crime victims often suffer. I know you already told her about this incident, but for me to assist you, it is important that I hear from you exactly what happened to you, and who did it to you. If you don’t mind, I am going to videotape our session so that I can consult later with my colleagues about it.

Alleged Victim: No problem. And thanks so much. But tell me. If I understand correctly from TV shows I’ve seen, if I choose not to go to court, you could testify yourself and show the videotape. Right?

C: That’s true. Of course, that’s not our primary purpose in holding this session.

AV: Whatever. I just don’t want to be in the same room as that guy, or look at his face, or have to answer a lot of questions by his lawyer.

C: No, you wouldn’t have to.

That sounds to me as if we are entering death-of-the-confrontation-right territory.

2. Davis leeway as limited to emergencies.

Justice Page, with one of his colleagues, dissented in Krasky, which is interesting because he had written one of the prior decisions holding a child’s accusation in largely similar circumstances to be non-testimonial – but he regarded Davis as calling for a different result, because the statement was not made during the course of an ongoing emergency.

3. Non-testimonial statement, incompetent witness.

The child was apparently incompetent to testify at trial. This also was a basis for the Page dissent. But the matter is quite complex, in my view. Obviously, the combination of holdings that the prosecution may introduce the child’s out-of-court statement and that the defense cannot call the child to the stand places the accused in a theoretically disadvantageous position: The statement will be admitted against him and he has no way of examining the declarant.

How big a problem is this? As a practical matter, it is unlikely (under present procedures) that if the statement is admitted against the accused he would choose to call the declarant to the stand if he could; that doesn’t happen often, for reasons I have explored before. (See, e.g., these posts: Pending Cert Petitions, Shifting the Burden, Take 2, and Shifting the Burden.) Moreover, the accused is in a similarly disadvantageous position whenever a statement by an unavailable declarant is admitted against the accused, and if the statement is in fact non-testimonial (as the majority held it was here) there is no confrontation problem. So if we assume that the statement was not testimonial in nature, I don’t believe the extra consideration that the defense could not call the child to the stand is particularly worrisome.

4. Apparently testimonial statement, incompetent witness

But now suppose, along with Justice Page, that the out-of-court statement would be characterized as testimonial in nature if the child were a competent witness – but in fact she is incompetent to testify at trial. What are the consequences?

In the 18th century, before R. v. Brasier, 1 Leach 199, 168 E.R. 202 (K.B. 1779), changed the rules, young children were categorically incompetent to testify at trial, and their out-of-court accusations were sometimes admitted. (I discussed this fact briefly in my reply brief in Hammon, and Tom Lyon and Raymond LaMagna explore it at length in their contribution in the Indiana symposium, The History of Children’s Hearsay, from Old Bailey to Post-Davis, 82 Ind. L.J. 1029 (2007)). I don’t think this history is a good guidepost for decision today. Those old cases admitted the out-of-court statements as the best evidence available, but I believe they were accommodating to, and effectively avoiding and undercutting, an overly active rule of incompetence. That is, most of these children probably should have been deemed to be competent witnesses (or at least to be heard; see below). Admitting the out-of-court statement was a way around the rule of incompetence, though with the serious problem that the statement was not made under the conditions required for testimony.

In resolving the problem, I think it is useful to distinguish between two different levels of incompetence.

a. The child who is capable of testifying, but not in a satisfactory manner

On one level, the child is sufficiently capable of understanding the nature of her statement for it to be considered testimonial, but she lacks a sufficient sense of obligation to tell the truth for her testimony to be accepted in court. Thus, the out-of-court statement is clearly testimonial in nature, but the child is not capable of testifying in court in a satisfactory manner.

In this setting, it is clear that the out-of-court testimonial statement should not be admitted. Out-of-court testimony, without oath or cross-examination, is clearly inferior to in-court, testimony, and if the child’s testimony in court should not be admitted because she is incompetent to give it then a fortiori neither should her out-of-court testimony be admitted.

Now, in passing I’ll mention that I believe there is a plausible argument that the child should not be disqualified from testifying in court simply because she does not demonstrate a sense of obligation to tell the truth. We know that many witnesses, though taking an oath, are strongly motivated to lie and do lie quite deliberately, and we nevertheless admit their testimony – as we admit all sorts of non-testimonial evidence – for what it is worth; even if the evidence is not particularly reliable, it may be a net benefit to the truth-determining process. Indeed, as I understand it, the tradition in some Continental courts is that the accused does not testify under oath but nevertheless he tells his story. And this was the practice in common law courts for centuries – this is what John Langbein called the “Accused Speaks” model, The Historical Origins of the Privilege Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047 (1994), which prevailed before defense lawyers tended to keep their clients quiet and before criminal defendants were allowed to testify under oath, beginning in the latter part of the 19th century. In the case of a child witness, administering the oath or an oath-like procedure might be considered an attempt to remind the child of the obligation to tell the truth and to reveal the child’s inclination to do so – and arguably that is all, so that any defects the child may have on this score should not prevent her from telling her story in court.

Putting this thought aside, though, the narrower point made here is clear: If a child makes an out-of-out testimonial statement and does not testify in court, the presumptive violation of the Confrontation Clause is not excused on the basis that she would not have been allowed to testify in court anyway because she lacks a sufficient obligation to tell the truth.

b. The child who is incapable of testifying

Now consider a deeper level of incompetence – the child is (or a child of ordinary understanding of her age would be) so insufficiently developed that the statement should not be deemed testimonial at all. Note that characterizing the child in this way would not be saying that she is acting as a witness but without satisfying the conditions for a proper witness; rather, the argument would be that she is just not capable of engaging in the kind of activity – witnessing – covered by the confrontation right.

I will not attempt to resolve here what kind and degree of development would be necessary for a person to be considered capable of witnessing. It may be that it is sufficient if the child understands that her statements are capable of causing adverse consequences to another person – or put another way, if the child has such limited understanding that she does not realize this, she should not be considered to be witnessing. I think it’s also worthwhile thinking about the suggestion made by my colleague Sherman Clark, An Accuser-Obligation Approach to the Confrontation Clause, 81 Neb. L. Rev. 1258, 1280-85 (2003), that in determining who is a witness within the meaning of the Confrontation Clause moral as well as cognitive development must be taken into account.

In his contribution to the Indiana symposium, Testing the Testimonial Concept and Exceptions to Confrontation: “A Little Child Shall Lead Them”, 82 Ind. L.J. 917 (2007), Bob Mosteller vigorously disagrees with the idea that some children should be considered so undeveloped that they are deemed out of the Confrontation Clause altogether. He seems to acknowledge that in one case that I have used to make this argument, State v. Webb, 779 P.2d 1108, 1109 (Utah 1989), in which an 18-month-old child said, “Ow bum daddy,” the argument “may be well taken.” But in the more usual case, he says, the child uses “purposeful communicative abilities.” I acknowledge that Webb is an unusual case, but that doesn’t eliminate the issue. I suppose that the child in Webb had and was using “purposeful communicative abilities.” More fundamentally, it strikes me as question-begging to assume that the use of such abilities renders the statement testimonial. Not all purposeful communication is testimonial, of course; the question becomes what additional conditions are required to make it so, and I believe it is at least plausible to hold that membership in the human species is not enough to qualify the maker of a statement as a witness. (If a trained bloodhound’s bark were determined to be purposeful communication to the effect, “This guy here is the source of the smell on that shirt you put under my nose a while back,” that would not render the dog a witness within the meaning of the Confrontation Clause.)

So at least arguably, I believe, in some cases a child who makes an out-of-court statement should not be considered a witness at all for purposes of the confrontation right. Now, this possibility might seem to lead to absurd results, because it would mean that the child’s incapacity is an argument favoring admissibility of her statement. I have a couple of responses.

First, I’m not sure that the result is indeed absurd on its face – let’s bear in mind that the confrontation right is not about sifting out good from bad evidence but about protecting the conditions for giving testimony.

Second, even if the confrontation right does not apply, on the ground that the child was not acting as a witness, this does not necessarily mean that the accused would not have a right to examine the child if the child’s statement were admitted. Let’s say the prosecution introduces blood that it claims came from the accused, or a pistol that is arguably the murder weapon, or a document the age of which is in question. The defendant has a right to examine this evidence, and it should be allowed to do reasonable experiments on it. I think the same principle ought to apply if the prosecution wishes to introduce an out-of-court accusation made by a child who is not deemed competent to be a witness. That is, the accused ought to have a right, recognized as a matter of due process, to examine the child – but I’m using “examine” in a non-technical sense. The child is not acting as a witness but is nevertheless a source of evidence, and so the defense has a right to examine her and try to generate information suggesting that the evidence she yields does not have the value the prosecution ascribes to it. In the case of a pistol, the principal examiner would be a ballistics expert; in the case of a child, it might be a child psychologist. Much of the examination would consist of questions, but it would not be cross-examination as we know it. Furthermore, in this context the accused would not generally have a right to be in the presence of the child. But presumably, the accused would have the right to have the encounter video-taped.

So I am suggesting that even though the Confrontation Clause does not apply in this setting, the accused may still have a constitutional right to have some sort of examination of the child. Does this undercut the clean principle (for which I’ve advocated) that if a statement is not testimonial the confrontation right does not apply? I don’t believe so. I’ve always thought that in particularly pressing cases the accused might have a due process right to demand production for cross-examination of the declarant of a non-testimonial statement, if the declarant is available. The procedure being discussed now would apply only if the child was available; the due process demand is particularly compelling in the context being examined here, in which the declarant is incompetent to be a witness; and the prescribed procedure is not even cross-examination.

Conceivably, the child could give her account, and the examination on behalf of the defense could occur, at trial. This still would not make the event testimonial if the child is deemed incapable of witnessing; this would be the counterpart of performing an experiment in the courtroom.

5. Age adjustment?

Even if a child is considered competent to be a witness within the meaning of the Confrontation Clause, there is a separate issue as to whether the child’s level of understanding should be taken into account in determining whether the particular statement is testimonial. This is a tricky question. I’m not entirely happy with a doctrine that asks about the expectations of a reasonable person when the speaker is in fact a young child. But neither does it seem satisfactory to break down the objectivity of the inquiry in this particular context – all the way by asking about the subjective anticipations of this child, or with a halfway measure such as asking about the anticipation of an eight-year-old child of ordinary understanding. Perhaps the best resolution is to consider the particular child subjectively in deciding whether she is capable of engaging in witnessing but to apply a straight objective test – referring to the standard “reasonable person” in determining whether the particular statement is testimonial. Readers’ thoughts on this question, as well as on any of the other difficult matters raised here, are of course welcome.